Will The New Manhattan DA’s Policy Be “Prosecute The Innocent”?

A few quotes and slogans immediately come to mind reading this New York Times story about how the New York County District Attorneys office has failed #MeToo women by passing on  a couple cases its writer, Jan Ransom, believes valid.* The current district attorney, Cy Vance, and his sex crimes unit, headed by Marsha Bashford, are held up for blame, for failing to prosecute the accused because the accusers want them to.

The experiences of women like Ms. Duong raise questions for prosecutors like Mr. Bragg and lawmakers, who have been reconsidering New York’s rape laws. How should prosecutors approach cases where victims’ accounts are credible, but may be difficult to prove in court? Should the state’s laws make convictions in such cases easier to win? And how should the criminal justice system balance the rights of the accused with a modern understanding of sexual violence?

When it’s too hard to get a conviction under the law, change the law? What’s meant by the insipid “balance the rights of the accused with a modern understanding of sexual violence” is hard to say. A wag might perceive this “modern understanding” to be any act a “survivor” believes to be “sexual violence” because she believes it, whether at the time, the next day or 20 years later, whether it was enthusiastically consensual at the time but, regretted later, whether it was actually a sex act or a benign act that made the “survivor” feel sexually violated.

Which rights should be balanced? Get rid of that darn presumption of innocence? Lower the burden of proof to preponderance? Redefine rape to preclude sex with an intoxicated, as opposed to incapacitated, woman? Create a new statutory presumption that provides if a “survivor” claims she was raped using whatever the “modern understanding” of the word means at any given moment, the burden shifts to the defendant to prove that she wasn’t?

Alvin Bragg won the Dem primary and will be presumed next district attorney of New York County. Vance’s office is taken to task for two reasons, the first being that they passed on cases Ransom contends were legitimate and provable. Whether that’s correct is a matter best not left in the hands of either accusers, “survivor” activists or New York Times reporters. The second is that they passed on cases where they had no sincere belief they could prove guilt beyond a reasonable doubt.

Bragg, however, says he’s going to clean up the swamp.

Mr. Bragg, in an interview, said he planned to “reboot” the sex crimes bureau “from the ground up,” by assessing its leadership and staff with input from survivors. He said he also intended to evaluate why certain cases are rejected, and that the likelihood of a conviction should not be a determining factor.

That last line is the one that should grab you, that “likelihood of a conviction should not be a determining factor.” Or to put it in more accurate words, prosecute the innocent even though you have no legitimate belief that the evidence of guilt is sufficient. Put them through the wringer. Put their names in the paper. Destroy their lives. Ruin their jobs and education. Break up their families. Cost them a small fortune. Make them lives under the threat of imprisonment for a crime that not even the prosecutor believes happened or can be proven.

And hence, the quotes and slogans.

First, there’s former Chief Judge Sol Wachtler’s quip that a prosecutor can indict a ham sandwich.

Second, there’s the beloved cop slogan, you can beat the rap but you can’t beat the ride.

And third, the reaction to campus “rape culture” ideology, just wait until the get into they real world.

It would take little effort for Bragg to make good on his promise of prosecuting presumptively innocent people for whom there is no expectation of conviction for no better reason than to appease the “survivor” under the “modern understanding of sexual violence.” Put the accuser into an NA grand jury and boom, he’s indicted. Instruct the grand jury that it’s rape if she feels it’s rape and let the judge be the bad guy when he inspects the grand jury minutes for sufficiency. Judges in Manhattan aren’t necessarily immune from being a bit antagonistic toward indicted rapists either.

But the impact of prosecuting a case to acquittal on a defendant is no small matter, even if the  deep concern for constitutional rights for other crimes evaporates when it’s a sex accusation. The arrest, prosecution and its ensuing consequences, the “ride” if you will, don’t go away just because the case ultimately ends in dismissal or acquittal. As we’re reliably informed, juries don’t find defendants innocent, so at best they’re “guilty,” but not guilty enough to get convicted. And that’s where they remain for the rest of their lives.

As the irrational and unprincipled push to water down rights and the principles behind them made its way through the academy and quad over the years, many believed it would peter out as the kids grew up. They would learn in real jobs from grown ups that their silly beliefs and fragile feelings weren’t going to be tolerated, we were told. But it hasn’t quite turned out that way, as the real world morphed into their fantasy world. It was apparent years ago that what started on campus in Title IX sex tribunals was worming its way into real law, undermining the minimal protections afforded defendants to assure that no “survivor” was denied the “justice” to which she felt entitled.

And so here we are, a presumptive district attorney heading perhaps the foremost  state prosecutorial office in the nation, announcing that he will prosecute the innocent even though he knows he can’t win at trial. That brings up another quote from former Labor Secretary, Ray Donovan, upon his acquittal.

Where do I go to get my reputation back?

“Survivors” don’t care. Jan Ransom doesn’t care. And Alvin Bragg doesn’t care. Forget Blackstone’s ratio, as the new tenet is it’s better to make innocent men suffer prosecution and perhaps conviction than let any “survivor” feel unsupported.

*It’s impossible to draw any conclusion as to whether Ransom’s characterizations are right or wrong, since they reflect only the information she chose to present and are unchallenged by the means demanded by due process. They may be correct. They may not. Trial by New York Times reporter, however, is not how guilt is determined.

26 thoughts on “Will The New Manhattan DA’s Policy Be “Prosecute The Innocent”?

  1. John Barleycorn

    You ought to coin a word…. and seeing as how that newspaper you read everyday is not listening to you just yet…. even after decades of thoughtful comentary on this subject….it ought to be a fucking long word too!

    But not just any word, it has to be a long word with the irony baked in.

    Something like hippopotomonstrosesquippedaliophobia, which is the fear of long words.

    That ought to get them editors at that newspaper you read everyday to pay attention….

      1. Lee Keller King

        Well then, if they keep complaining, it means you’re doing your job. Keep up the good work. #gadflyforjusticr

          1. GHB

            People don’t typically notice when they turn into conspiracy theorists. They just notice that more people disagree with them.

            1. SHG Post author

              I wouldn’t call the NYT editorial staff conspiracy theorists, even though so many people disagree with them since they went woke.

  2. B. McLeod

    There are more than a few prosecutors who subscribe to the theory that scraping through the probable cause hearing means the case is good for trial. That’s probably what is behind the notion that prospects of conviction should not be determinative. This guy is just going to order his grunts to try every case the court doesn’t throw out, unless they can extract a plea deal satisfactory to the “victim.” It will wear through with the judges before long, unless they can be Perskyed into line.

    1. SHG Post author

      There are no probable cause hearings in Manhattan, even though the law provides for them. It’s all done by indictment.

  3. Elpey P.

    An imperfect but possibly effective response is for as many men as possible to level sexual assault allegations at women, especially democratic office holders and social justice pundivists, for the numerous times they themselves have had similar lived experiences. Most of those incidents currently go unreported and unpunished too.

      1. Will J. Richardson

        A paraphrase of part of a speech by Abraham Lincoln states: “The best way ‌to get a bad law repealed is to enforce it strictly.”

  4. Mark Dwyer


    Forgive me, Scott, but I think that’s wrong. That a conviction is not a slam dunk does not mandate dismissal. Nor should even a case in which a conviction is a 50-50 shot do so, if the prosecutor believes the crucial witness. (Nor, in my opinion, is the prosecutor barred from considering evidence like Molineux proof or suppressed evidence that the jury will not hear). Otherwise, almost every case in which a witness of questionable prior credibility is critical, and just about any one-witness ID case, would have to be dismissed. Among many others.

    Cases and witnesses have to be evaluated one at a time. That a case poses tough issues does not mean that the accused is innocent, or that the presumption of innocence is being ignored. Sometimes, not just the defendant is entitled to a jury trial.

    None of this is of course to deny that bad decisions to prosecute have been made before. Many many times. A criminal justice system run by humans must deal with human fallibility. But there is no other type of system.

    1. SHG Post author

      I’m not sure you’re reading this the same way I am. No one said “slam dunk,” or that cases shouldn’t be evaluated one at a time. But to prosecute when you do not believe guilt can be proven, to destroy someone’s life when you lack a legitimate basis to prosecute, is an abuse of discretion. This is just ruining people for kicks and social justice applause.

      1. Mark Dwyer

        I agree that any prosecutor who tries a case thinking that he can’t prove guilt should be shot. Well. Fired, anyway. But I don’t think that Bragg’s comment that “the likelihood” of a conviction should not be a determining factor shows that he endorses the contrary view.

          1. Jo

            The standard to prosecute is technically probable cause, even though many offices won’t prosecute unless they feel it can be proven beyond a reasonable doubt. But for a moment, look at it from the perspective of someone who has been sexually assaulted, why press criminal charges when you can sue for battery and get a decision based on preponderance? Blackstones ratio is for prison not reputations.

            1. SHG Post author

              Thank you for explaining the technical standard of probable cause. How would an old lawyer like me ever know without you.

            2. Jo

              Well you misunderstand Blackstone’s ratio, so who knows what else you need explained. Maybe you should take some summer classes.

            3. Ron

              Why don’t you just trash these blind little shits? Just reading their whining nonsense makes my head hurt.

  5. C. Kramer

    If a person believes that he or she is the victim of a sexual assault and the prosecuting authority decides not to prosecute, he or she has the option of a civil suit.


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